NEW CHANGES TO RHPA TO AFFECT ONTARIO’S PHYSICIANS
By Lonny J. Rosen, LL.B., C.S. and Elyse Sunshine, B.A., LL.B.*
Significant changes to the Regulated Health Professions Act, 1991 (RHPA) and its procedural
code have recently come into effect. These will dramatically affect the information about all
regulated health professionals, including physicians, that is available to the public, and will
provide health Colleges with sweeping new powers and access to more personal information
about and from their members than ever before. Some of these changes were enacted with the
passage of Bill 171 in 2007, but were not implemented until this month. Other changes were
introduced and enacted this year to enhance Colleges’ powers of investigation. This article will
summarize some of the more significant changes to the RHPA’s Procedural Code.
Enhanced Mandatory Reporting
The RHPA and its procedural code previously imposed very limited reporting obligations. These
arose only when a doctor learned in the course of his or her practice, that a patient had been
sexually abused by a health professional or when a health professional’s employment had been
terminated or suspended because of misconduct, incompetence or incapacity.
These reporting obligations remain. Now, however, operators of a facility where one or more
members practice will now be required to report to the Registrar if they believe that a member
practicing at the facility is incompetent or incapacitated - regardless of whether the operator
terminates the member’s employment or association. As “facility” is not defined in the
legislation, Colleges are likely to interpret the word broadly.
These obligations may therefore apply to any person who operates any type of practice,
including a family practice or health team. If an individual fails to report in these circumstances,
he or she faces a fine of up to $25,000.00 for a first offence and could be subjected to
professional misconduct charges (if he or she is a professional). As operators of a facility may
have difficulty determining whether a member practicing at the facility is incapacitated or
incompetent, it is important for all professionals and “facility operators” to understand the legal
meaning of “incompetence” and “incapacity” and to avail themselves of legal advice before
taking any steps in this regard.
Additionally as of June 4, 2009, all health professionals are required to file a report with their
College if they have been found guilty of any offence. This obligation will enable Colleges to
investigate members’ conduct, and to determine whether the finding raises concerns relevant to
their suitability to practice. Offences reported to Colleges should not appear on the public
register unless there is a related finding of professional misconduct.
What Was Private is now Public
While the College of Physicians and Surgeons of Ontario (CPSO) has made much of the public
register available on its website for some time, it must now include more information than ever
before. The result of every disciplinary and incapacity hearing, a synopsis of those decisions, all
cases which have been referred to the Discipline Committee for a hearing, notations of every
suspension or revocation that has been issued to a doctor and, for the first time, any finding of
professional negligence or malpractice made against them by a court must now be included on
the website. Doctors will now have to self-report any such findings to the CPSO.
Introducing the ‘Inquiries, Complaints and Reports’ Committee
Each College will see its Complaints Committee replaced by the Inquiries, Complaints and
Reports Committee (ICRC), which will receive all complaints, inquiries and reports about a
member. Previously, if a complaint dealt with issues of standards of practice, the Complaints
Committee could refer the matter to the Quality Assurance Committee for some form of
assessment and/or mediation. This referral power has been eliminated but the ICRC could
require a member to complete continuing education or remediation.
Enhanced Emergency Powers
What is potentially most distressing for doctors is that the CPSO’s ICRC now has the power to
make an interim order suspending their licence, without notice, if there are grounds to believe
that the doctor’s conduct exposes, or is likely to expose, his or her patients to harm or injury and
urgent intervention is needed. Previously, the CPSO Executive Committee had this authority,
but could not exercise its “emergency powers” without giving the member an opportunity to
comment.
The Past May Haunt You
Among other concerning changes to the RHPA is a requirement that the ICRC, when considering
a complaint or report about a member, consider all prior decisions about the member, including
decisions in which no misconduct was found and no action was taken (except for decisions
regarding a complaint that was found to be frivolous, or made in bad faith). These amendments
will be troubling for all doctors who have previously been the subject of a complaint - even
where no action was taken by the Complaints Committee - due to a concern that the ICRC may
be reluctant to dismiss a complaint simply because a doctor has been the subject of numerous or
similar allegations in the past. Further, while information about past decisions will not
necessarily be disclosed to a complainant, such information may still become available in a
review, appeal or subsequent proceeding.
Alternative Dispute Resolution
Another change to the regulatory regime is that Alternative Dispute Resolution (ADR) is now
formally available for the resolution of a complaint matter. A complaint matter may only be
referred to ADR with the consent of both the complainant and the physician, as long as it does
not involve an allegation of sexual abuse. If an ADR process results in resolution, the panel has
discretion to accept the proposed resolution, but may reject the settlement and still continue with
its investigation of the complaint! If no resolution is reached, however, then all communications
between the health professional, the complainant and any facilitator in connection with the ADR
process shall remain confidential and cannot be part used in any subsequent proceeding.
Penalties Effective Immediately
Presently, most Discipline Committee orders which suspend or revoke a doctor’s license or
impose terms, conditions or limitations on the license, will not take effect until he or she has had
the opportunity to appeal and the appeal has been decided. Colleges will now be permitted to
apply to the Court to have the decision of the Discipline Committee take effect immediately,
notwithstanding the commencement of an appeal. Additionally, if a doctor is found guilty of
certain types of sexual abuse or has his or her licence suspended or revoked on the grounds of
incapacity or incompetence, the suspension or revocation takes effect immediately, despite any
appeal.
Enhanced Powers of College Investigators
CPSO Investigations have typically involved chart reviews and witness interviews, but rarely
have investigators sought to compel the physicians under investigation to answer questions or to
carry out procedures while under investigation. When the CPSO attempted to employ these
investigative techniques in the course of recent investigations, some of the physicians being
investigated challenged the scope of the CPSO’s investigative powers. The Divisional Court
accepted the CPSO’s expansive interpretation of its investigative powers, but the Ontario Court
of Appeal agreed to hear the physicians’ appeal and did so (the decision is under reserve). In the
interim, however, rather than awaiting the Court of Appeal’s ruling, the Government of Ontario
has enacted Bill 141, further amending the Code to authorize investigators to “make reasonable
inquiries of the member who is the subject of the investigation” and to compel the member to
cooperate fully with an investigator. The Code now provides for direct observation of a member
in his or her practice, including the direct observation by inspectors of procedures (i.e. surgery).
It appears that regardless of the Court of Appeal’s determination, CPSO investigators and
inspectors will have significantly greater and more intrusive powers at their disposal.
Conclusion
While these amendments will no doubt allow for the CPSO, patients and members of the public
to learn more about Ontario’s doctors, there is no corresponding enhancement of doctors’ rights
or procedural protections. Such protections will still be available in connection with many
proceedings, but the concern remains that doctors will find themselves embroiled in more
conflicts and other proceedings as a result of the College’s enhanced investigative powers and
the increased information disclosure required by the new amendments. For these reasons, access
to advice from lawyers who specialize in representing health professionals in regulatory
proceedings will be more important than ever before.
This column is intended to convey brief, timely, but only general information and does not constitute legal
advice. Readers are encouraged to speak with legal counsel to understand how the general issues noted
above apply to their particular circumstances.
*Lonny J. Rosen (a Certified Specialist in Health Law) and Elyse Sunshine are partners in the Health
Law Group at Gardiner Roberts LLP. Please talk to Elyse or Lonny about how the changes discussed
in this article will impact your practice. Elyse can be reached at: 416.369.4343 or by e-mail
esunshine@gardiner-roberts.com. Lonny can be reached at:
416-369-4345 or by e-mail:
lrosen@gardiner-roberts.com
